Section 2-607
A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
Comment
See Section 3-814 empowering the personal representative to pay an encumbrance under some circumstances; the last sentence of that section makes it clear that such payment does not increase the right of the specific devisee. The present section governs the substantive rights of the devisee. The common-law rule of exoneration of the specific devise is abolished by this section, and the contrary rule is adopted.
For the rule as to exempt property, see Section 2-403.
The rule of this section is not inconsistent with Section 2-606(b). If a conservator or agent for an incapacitated principal mortgages specifically devised property, Section 2-606(b) provides that the specific devisee is entitled to a pecuniary devise equal to the amount of the unpaid loan. Section 2-606(b) does not contradict this section, which provides that the specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration.
Massachusetts comment
This is consistent with current Massachusetts law, G.L. c. 191, § 23. That law goes on to say that if the personal representative discharges the mortgage note, he or she shall, at the request of any interested party and by leave of the Probate Court, sell the real estate in order to make the estate whole. This is covered, but not as well, in UPC section 3-814.